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by Chris Turner
Unlocking Employment Law
Cover
Title
Copyright
Contents
Guide to the book
Acknowledgements
Preface
List of figures
Table of cases
Table of statutes and other instruments
Table of legislation
Table of EU Treaty Articles and legislation
1 THE ORIGINS OF MODERN EMPLOYMENT LAW
1.1 The origins of the regulation of employment
1.1.1 The Statute of Artificers and Apprentices 1562
1.1.2 The application of the Statute of Artificers and Apprentices 1562 in the eighteenth century
1.1.3 Developments in the common law in the eighteenth century
1.2 Changes in conditions of employment in the Industrial Revolution
1.2.1 Reduction in status of traditional work
1.2.2 Unemployment and casual employment
1.2.3 Child labour
1.2.4 Conclusions
1.3 Legislation and the development of industrial law in the nineteenth century
1.3.1 Legislation on employment prior to 1832
1.3.2 Legislation on employment between the two Reform Acts of 1832 and 1867
1.3.3 Legislation on employment from 1867
1.3.4 Comment
1.4 The common law approach to employment in the nineteenth century
1.4.1 The 'master servant' relationship
1.4.2 Employment and the basic rules of contract
1.4.3 The implied duties of master and servant
1.4.4 The legal relationship of master and servant and third parties
1.4.5 The liability of the master for injury to his servant
1.4.6 Comment
1.5 Advancements and reductions in modern employment rights
1.5.1 Advances in employment rights and protections
1.5.2 Reductions of employee rights and protections
Further reading
2 THE EFFECTS OF EU MEMBERSHIP ON UK EMPLOYMENT LAW
2.1 UK membership of the European Union
2.1.1 Introduction
2.1.2 The basis of UK membership
2.2 The supranational legal order of the EU
2.2.1 EU legal instruments
2.2.2 Supremacy
2.2.3 Direct effect, indirect effect and state liability
2.3 The importance of EU membership to UK employment law
2.3.1 UK implementation of EU law
2.3.2 The development of EU labour law
2.3.3 The effects of EU labour law
Further reading
3 INSTITUTIONS AND PROCEDURES
3.1 Courts and tribunals hearing employment disputes
3.1.1 Employment tribunals
3.1.2 County Court and High Court
3.1.3 The Employment Appeal Tribunal
3.1.4 The Court of Appeal (Civil Division)
3.1.5 The Supreme Court
3.1.6 The Court of Justice of the European Union
3.1.7 Other significant institutions in employment law
3.2 Employment tribunal procedure
3.2.1 Time limits
3.2.2 Originating procedure (bringing a claim)
3.2.3 Conciliation, settlements and compromise arrangements
3.2.4 Case management
3.2.5 Pre-hearing review
3.2.6 The procedure at the hearing
3.2.7 Appeals
Further reading
4 EMPLOYMENT STATUS
4.1 Introduction
4.2 Distinguishing between employment and self-employment
4.2.1 The employment relationship
4.2.2 The purpose of distinguishing between employment and self-employment
4.3 Tests of employment status
4.3.1 Introduction
4.3.2 The control test
4.3.3 The integration or organisation test
4.3.4 The economic reality or multiple test
4.3.5 The mutuality of obligations test
4.4 Non-standard categories of work
Sample essay question
Further reading
5 THE CONTRACT OF EMPLOYMENT
5.1 Formation of the employment contract
5.1.1 The form of the contract of employment
5.1.2 The requirement of writing
5.1.3 Formalities in the contract
5.1.4 Minority and the contract of employment
5.1.5 Illegality and the contract of employment
5.2 The statutory statement
5.2.1 The legal status of the statement
5.2.2 Enforcement of the statement
5.3 The incorporation of the express terms
5.3.1 The range and character of express terms
5.3.2 The significance of the express terms
5.3.3 Interpreting the express terms
5.3.4 The advantages and disadvantages of express terms
5.4 Collective agreements
5.4.1 The nature of collective agreements
5.4.2 Express incorporation of collective agreements
5.4.3 Implied incorporation of collective agreements
5.4.4 The effect of collective agreements on non-union members
5.4.5 No strike clauses
5.4.6 Changing or ending collective agreements
5.5 Works rules
5.5.1 The nature and effect of works rules
5.5.2 The significance of the job description
5.6 Variation of contractual terms
5.6.1 Bilateral variations
5.6.2 Unilateral variations
5.6.3 Implied variations
Sample essay question
Further reading
6 GARDEN LEAVE AND RESTRAINT OF TRADE
6.1 Garden leave clauses
6.2 Post termination restraint of trade clauses
6.2.1 The definition and character of restraint of trade clauses
6.2.2 Interests that can be protected by the employer
6.2.3 The possible scope of post termination restraints
6.2.4 Interpreting post termination restraints
6.2.5 Enforcement and remedies
Sample essay question
Further reading
7 IMPLIED TERMS
7.1 The process of implying terms
7.1.1 The nature of implied terms
7.1.2 The process of implying terms into contracts
7.2 The implied duties of employers
7.2.1 The payment of wages
7.2.2 The provision of work
7.2.3 The care of the employee
7.2.4 The duty to indemnify
7.2.5 The duty of mutual trust and respect
7.2.6 The duty of confidentiality
7.2.7 The duty to deal with grievances promptly
7.2.8 The giving of references
7.3 The implied duties of employees
7.3.1 The duty to obey lawful and reasonable instructions
7.3.2 The duty to exercise reasonable care and skill
7.3.3 The duty to adapt
7.3.4 The duty of faithful service
Sample essay question
Further reading
8 STATUTORY EMPLOYMENT PROTECTIONS
8.1 Wages
8.1.1 The meaning of wages
8.1.2 Deductions from pay
8.1.3 The National Minimum Wage
8.2 Guarantee payments
8.3 Sickness
8.3.1 Sick leave
8.3.2 Medical suspension
8.3.3 Pay during sick leave
8.4 Maternity
8.4.1 Time off for ante-natal care
8.4.2 Suspension on maternity grounds
8.4.3 Maternity leave
8.4.4 Payment during maternity
8.4.5 Discrimination and dismissal because of pregnancy
8.5 Other entitlement to leave or time off
8.5.1 Parental leave
8.5.2 Paternity leave
8.5.3 Adoption leave
8.5.4 Time off for dependant care
8.5.5 Time off for public duties
Sample essay question
Further reading
9 PROTECTION FROM DISCRIMINATION: INTRODUCTION (THE EQUALITY ACT 2010)
9.1 The origins of UK discrimination law
9.2 The Equality Act 2010 and the protected characteristics
9.3 The Equality Act 2010 and the areas of prohibited conduct
9.3.1 Direct discrimination
9.3.2 Indirect discrimination
9.3.3 Harassment
9.3.4 Victimisation
9.4 Occupational requirement
9.5 Discrimination in employment
Further reading
10 PROTECTION FROM DISCRIMINATION (1) EQUAL PAY
10.1 The origins of equal pay
10.2 The Equality Act 2010
10.2.1 The equality clause
10.2.2 The comparator
10.2.3 Like work
10.2.4 Work rated equivalent
10.2.5 Work of equal value
10.2.6 Justifications for unequal pay
10.2.7 Making equal pay claims
10.2.8 Remedies
10.3 Article 157 TFEU
10.3.1 The basic protection
10.3.2 The definition of pay
10.3.3 Indirect discrimination and objective justification
Sample essay question
Further reading
11 PROTECTION FROM DISCRIMINATION (2) SEX DISCRIMINATION
11.1 The origins and aims of sex discrimination law
11.2 The different types of sex discrimination
11.2.1 Direct discrimination
11.2.2 Indirect discrimination
11.2.3 Harassment
11.2.4 Victimisation
11.3 The situations in which discrimination is prohibited in employment
11.3.1 Recruitment and selection of staff
11.3.2 During employment
11.3.3 On termination of employment
11.4 Lawful justifications for sex discrimination
11.5 Discrimination on marital status
Sample essay question
Further reading
12 PROTECTION FROM DISCRIMINATION (3) RACIAL DISCRIMINATION
12.1 The origins and aims of race discrimination law
12.2 The different types of racial discrimination
12.2.1 Direct discrimination
12.2.2 Indirect discrimination
12.2.3 Harassment
12.2.4 Victimisation
12.3 The situations in which racial discrimination is prohibited in employment
12.3.1 Recruitment and selection of staff
12.3.2 During employment
12.3.3 On termination of employment
12.4 Lawful justifications for racial discrimination
Sample essay question
Further reading
13 PROTECTION FROM DISCRIMINATION (4) DISABILITY DISCRIMINATION
13.1 The origins of disability discrimination law
13.2 The Equality Act 2010 and the definition of disability
13.2.1 Physical or mental impairment
13.2.2 A substantial or long term effect
13.2.3 Normal day-to-day activities
13.3 The Equality Act and the different types of discrimination
13.3.1 Discrimination arising from disability
13.3.2 Direct discrimination
13.3.3 Indirect discrimination
13.3.4 Harassment
13.3.5 Victimisation
13.3.6 Discrimination in employment
13.4 The duty to make reasonable adjustments
Sample essay question
Further reading
14 PROTECTION FROM DISCRIMINATION (5) RECENT DEVELOPMENTS IN DISCRIMINATION LAW
14.1 The background to the wider development of discrimination law
14.2 Sexual orientation
14.3 Gender reassignment
14.4 Religion and belief
14.5 Age
14.6 Part-time workers
14.7 Fixed-term workers
14.8 Agency workers
Sample essay question
Further reading
15 PROTECTION FROM DISCRIMINATION (6) PURSUING DISCRIMINATION CLAIMS
15.1 Procedure for claiming
15.2 Remedies
Further reading
16 HEALTH AND SAFETY LAW
16.1 Introduction: the significance of health and safety at work
16.2 Common law health and safety at work protections
16.2.1 The origins of liability and the non-delegable duty of care
16.2.2 The duty to provide safe working colleagues
16.2.3 The duty to provide safe plant and equipment
16.2.4 The duty to provide a safe system of work
16.2.5 The duty to provide a safe place of work
16.2.6 The character of the duty
16.2.7 Defences
16.3 Developments in the duty of care
16.3.1 Stress at work and psychiatric injury
16.3.2 Bullying and the Protection from Harassment Act 1997
16.4 Statutory and EU health and safety protections
16.4.1 The Health and Safety at Work Act 1974
16.4.2 The 'six pack' of regulations
16.4.3 The Working Time regulations
Sample essay question
Further reading
17 GRIEVANCES AND DISCIPLINE
17.1 Grievance procedure
17.1.1 Causes of grievance
17.1.2 Formal procedure for hearing grievances
17.1.3 The right to be accompanied
17.1.4 Breaches of procedure
17.2 Disciplinary procedure
17.2.1 The ACAS Code of Practice
17.2.2 Disciplinary measures
17.2.3 Disciplinary hearings
17.2.4 Disciplinary warnings
17.2.5 The right to be accompanied
17.2.6 Appeals
17.2.7 Breaches of procedure
Sample essay question
Further reading
18 TUPE TRANSFERS
18.1 The origins and aims of law on transfer of undertakings
18.2 To whom the regulations apply
18.3 The nature of a transfer for TUPE purposes
18.4 The effect of TUPE transfers
18.5 Dismissals on transfer
18.6 Consultation
Sample essay question
Further reading
19 TERMINATION OF EMPLOYMENT (1) CONTINUITY, NOTICE AND DISMISSAL
19.1 Continuity of employment
19.2 Notice and statutory notice periods
19.3 Dismissal
19.3.1 The statutory definition of dismissal
19.3.2 Summary dismissal
19.3.3 Failure to renew a fixed-term or limited-term contract
19.3.4 Constructive dismissal
Sample essay question
Further reading
20 TERMINATION OF EMPLOYMENT (2) TERMINATION OTHER THAN BY DISMISSAL
20.1 Frustration of the contract
20.2 Death of the employer
20.3 Resignation
20.4 Termination by mutual agreement
Sample essay question
Further reading
21 TERMINATION OF EMPLOYMENT (3) WRONGFUL DISMISSAL
21.1 Introduction
21.2 The nature of wrongful dismissal
21.3 Bringing an action for wrongful dismissal
21.4 Remedies for wrongful dismissal
Sample essay question
Further reading
22 TERMINATION OF EMPLOYMENT (4) UNFAIR DISMISSAL
22.1 The origins, aims and character of unfair dismissal law
22.2 Eligibility
22.3 Dismissals classed as automatically unfair
22.4 Dismissals classed as potentially fair
22.4.1 Capability and qualifications
22.4.2 Misconduct
22.4.3 Genuine redundancy
22.4.4 Dismissal because of a statutory restriction
22.4.5 Other substantial reason
22.5 Determining whether the dismissal is fair
22.5.1 The reasonable range of responses test
22.5.2 Procedural fairness and the ACAS Code of Practice
22.6 Pursuing a claim for unfair dismissal
22.7 Remedies
Sample essay question
Further reading
23 TERMINATION OF EMPLOYMENT (5) REDUNDANCY
23.1 The origins and aims of redundancy law
23.2 Eligibility for redundancy
23.3 Dismissals for reasons of redundancy
23.4 Redundancy procedures
23.5 Calculating redundancy payments
23.6 Lay-offs and short-time working
Sample essay question
Further reading
24 EMPLOYMENT RIGHTS RELATED TO TRADE UNION MEMBERSHIP AND NON-MEMBERSHIP
24.1 Introduction: the origins of modern trade union law
24.2 Trade union membership and non-membership
24.3 Trade union recognition
24.4 Trade union related time off
24.4.1 Time off for trade union duties
24.4.2 Time off for trade union activities
24.5 Collective bargaining
24.6 Statutory protection during trade disputes
24.6.1 Tortious liability in trade disputes
24.6.2 Immunity from legal action
24.6.3 Loss of immunity
24.7 Discipline short of dismissal
24.8 Dismissal
24.8.1 Trade Union related dismissal
24.8.2 Dismissal for taking part in industrial action
24.8.3 Dismissal because of industrial pressure
Sample essay question
Further reading
Appendix 1
Appendix 2
Glossary
Index
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Prev
Previous Chapter
Preface
Next
Next Chapter
Table of cases
List of figures
2.1
Flow chart illustrating how supremacy of EU law works
2.2
Diagram illustrating the possible means of enforcing rights contained in
directives
3.1
Diagram illustrating the courts or tribunals hearing employment
cases
4.1
Chart illustrating the consequences of distinguishing between
employees and self-employed
4.2
Diagram illustrating the operation of the control test
4.3
Diagram illustrating the operation of the integration test
4.4
Diagram illustrating the operation of the economic reality test
4.5
Diagram illustrating the operation of the mutuality of obligations test
4.6
Chart illustrating the relative merits of the four tests
5.1
Chart illustrating the information that must be contained in the
statement of particulars of employment as required by section 1
Employment Rights Act 1996
5.2
Sample statutory statement of particulars
5.3
Diagram illustrating how terms in the employment contract originate
6.1
Flow chart illustrating the conditions under which garden leave may
be granted
6.2
Flow chart illustrating how a court determines the legitimacy of a
restraint of trade clause in a contract of employment where the
employee fails to abide by the restraint
7.1
Diagram illustrating when terms may be implied by the courts
7.2
Do the implied duties help to create a balance in the employment
relationship?
8.1
Chart of the rates of pay under the National Minimum Wage
9.1
Diagram illustrating the elements of a claim for direct discrimination
9.2
Diagram illustrating the elements of a claim for indirect
discrimination
9.3
Diagram illustrating the elements of a claim for harassment
9.4
Diagram illustrating the elements of a claim for victimisation
10.1
Diagram illustrating the elements of an equal pay claim under the
Equality Act 2010
10.2
Diagram illustrating the elements of equal pay under EU law
11.1
Flow chart illustrating the requirements for a claim of discrimination
on grounds of sex
11.2
Flow chart illustrating the requirements for a claim of discrimination
on the grounds of marital status or civil partnership
12.1
Flow chart illustrating the requirements for a claim of discrimination
on racial grounds
13.1
Flow chart illustrating the requirements for a claim of disability
discrimination
14.1
Flow chart illustrating the requirements for a claim of discrimination
on grounds of sexual orientation
14.2
Flow chart illustrating the requirements for a claim of discrimination
on grounds of gender reassignment
14.3
Flow chart illustrating the requirements for a claim of discrimination
on grounds of religion or belief
14.4
Flow chart illustrating the requirements for a claim of age
discrimination
14.5
Flow chart illustrating the elements of possible claims under the
Part-time Workers (Prevention of Less Favourable Treatment)
Regulations 2000
16.1
Diagram illustrating the employer's common law liability for failures
to take care of the health, safety and welfare of the employee
17.1
Common procedures in handling grievances
17.2
Check list for an appropriate disciplinary procedure
18.1
Diagram illustrating the operation of the Transfer of Undertakings
(Protection of Employment) Regulations
20.1
Diagram illustrating when a contract of employment will be
considered frustrated
20.2
Diagram illustrating the differences between different types of
termination without dismissal
21.1
Flow chart illustrating the necessary elements for a claim for
wrongful dismissal
22.1
Flow chart illustrating the process for deciding if a dismissal is fair or
unfair
23.1
Diagram illustrating the factors for consideration in a redundancy
situation
24.1
Diagram illustrating the immunity of trade union officials from
actions in tort
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